SCOTUS scores

The present moment is ripe to recall the Prize for Civility in Public Life that Allegheny College awards annually, and especially the latest recipients from 2017.

Allegheny began awarding the prize in 2012 as a quest to reverse “the rise of incivility in our democracy,” as college president James H. Mullen wrote at the time in naming columnists and NewsHour hosts David Brooks and Mark Shields as inaugural prizewinners.

The 2017 honorees for the prize were none other than Ruth Bader Ginsburg and (posthumously) Antonin Scalia.

The two U.S. Supreme Court justices were known to be fast friends, despite being political foes. In addition to sharing similar personal interests in travel, opera and wine, Ginsburg and Scalia shared something else: high confirmation vote scores.

Nominated by President Ronald Reagan in 1986, Scalia was approved in the Senate on a 98-0 vote. Nominated by President Bill Clinton seven years later in 1993, Ginsburg won her confirmation in a 96-3 vote (even after flat-out refusing to answer a number of questions in her hearings).

During that same short period Clarence Thomas eked out a 52-48 senate confirmation score, and Robert Bork’s nomination was rejected 42-58.

The character assassination of Bork, widely regarded as one of the most brilliant scholars ever nominated, was masterminded by senior Democratic senate leaders and special interest groups. If memory fails you, go back and read the “Bork’s America” scare-tactic speech given (with the straightest of faces) by Sen. Ted Kennedy just one hour after Bork’s nomination announcement.

The same Democrats who had voted “yea” for Scalia in 1986 just one year later bashed and dashed Bork’s nomination in the most uncivil attack in recent memory at the time.

Before Bork, here are the voting scores for the SCOTUS nominees starting in 1970: 94-0 (Blackmun), 89-1 (Powell), 68-26 (Rehnquist), 98-0 (Stevens), 99-0 (O’Connor), and 98-0 (Scalia).

Incredibly, with the single exception of Rehnquist, in 17 years prior only one senator cast a “nay” vote on a Supreme Court associate justice nomination.

The Bork lynching by Democrats—they had warned of a combative posture, but Reagan rightly characterized the Senate leadership’s collusion with leading special interest groups as a “lynch mob”—negatively altered the civility of such proceedings.

Prior to 1970, most SCOTUS nominees were confirmed by simple voice vote. Both of President John F. Kennedy’s nominees, three of President Dwight Eisenhower’s, two of President Harry Truman’s and seven of President Franklin D. Roosevelt’s were all confirmed that way, so no record of scoring exists for those.

The last SCOTUS justice to receive a unanimous confirmation vote is the one now retiring. Anthony Kennedy was confirmed 97-0 in 1987.

Since Ginsburg garnered her 96 “yea” confirmation votes 25 years ago this August, here are the SCOTUS scores: 87-9 (Breyer), 78-22 (Roberts), 58-42 (Alito), 68-31 (Sotomayor), 63-37 (Kagan), 54-45 (Gorsuch).

The paradigm shift that has rendered 90-something confirmation scores a thing of the past isn’t an accident. It’s a product of a distinctive and collective special interest strategic initiative, carried out by the political party prone to pander to those interests.

Fringe groups seeking radical change began to realize that while successful legislation often takes large sums of time and money, the Supreme Court can change the law for 320 million Americans in a single session, sometimes by a single vote. It has proven much easier at times to lobby and convince five SCOTUS justices instead of the majority of nearly 500 federal lawmakers.

That dynamic change, naturally, unduly politicizes the judicial nomination process, creating both contention and (as desperation born of a “live by the gavel, die by the gavel” potential pendulum swing emerges) increased incivility.

With the announcement of the next SCOTUS nominee just days away, liberal groups are already planning tens of millions of dollars in ad campaigns to fan flames of unfounded fears. Political pressure affects senators, no doubt. On both sides of the aisle, for those facing less than certain re-election this confirmation vote will loom large as a career consideration.

It would be better if the political discussion could rise above the next nominee to the more substantive issue of the shaky footing that law-by-SCOTUS-decree creates. That argument—convenience of court rulings versus consensus of legislation—has been a long time coming, and though painful, will in the end be good medicine for both the Democratic Party and the nation as a whole.

There wouldn’t be frenzied worries over Roe v. Wade had the abortion lobby simply persevered for statutory (or even constitutional amendment) success. At the time, and still today, that ruling was widely criticized as lacking sufficient underpinning in law.

But hey, with a friendly court, it worked.

The fact that special interests are overwrought now about a possibly unfriendly court signifies a colossal problem–not with those groups, but with the modern “law by judicial decree” process. Self-government must rely on elected representatives in Congress and the 50 state legislatures. The only way that works is for the Supreme Court to exercise self-restraint.

Justices are ill-equipped to make law (they’re the furthest thing from representative), which isn’t their job anyway. We need nominees who respect that above all. Hopefully that’s the kind we’ll get next.


Supreme misrepresentation

Though June 29, 2010, was a milestone of major significance for the Supreme Court of the United States, it went unnoticed by most of the 300 million citizens who make up We the People.

When Justice John Paul Stevens retired on that day, it marked the first time in American history that the highest court in the land was without a single Christian Protestant member.

Protestants have historically been, and are still today, the largest single religious group in the United States. That cultural reality was reflected in the Supreme Court for more than two centuries. From its inception in 1789 until 1994, there had never been fewer than six Protestant justices on the court. For the first 100 years, the court was almost all Protestant; over the next 100 it generally mirrored the Protestant population as a percentage.

But within a mere 16 years—between 1994 and 2010—the Supreme Court became supremely misrepresentative. Today we’re still a nation in which half the population identifies itself as Protestant, yet Protestants have been nonexistent on the court for six years.

Only one in five Americans is a Catholic, but five of eight Supreme Court justices are (it was six before Antonin Scalia died).

And while followers of Judaism account for two percent of the population, they make up 37 percent of the Court, and if the nomination of Merrick Garland is approved, that would grow to 44 percent.

There is, of course, no religious test for Supreme Court justices. But the lack of legal requirements doesn’t invalidate common sense, or concern over a shift that has transpired with breathtaking rapidity.

Considerations involving religious representation mustn’t be confused with prejudice. It’s not discriminatory to expect the nation’s highest judicial panel to generally reflect the faiths represented in the population. Indeed, the government (the president appoints justices, the Senate confirms them) has been harshly criticized in the past for not including members of minority religions.

Following that logic, more criticism is warranted for excluding members from the most populous religious denominations.

In what might be considered one of his last testaments, Justice Scalia broached the topic just months before his untimely death.

Dissenting in Obergefell v. Hodges, Scalia slammed the majority for exerting its “reasoned judgment” in place of legislative or constitutional documentation regarding same-sex marriages.

In the closing paragraphs of his dissent, he boldly condemned the lack of credentials for court justices to impose their reasoning or judgment on social rather than legal issues.

The majority opinion wrote that the founders and early architects of the 14th Amendment couldn’t imagine “the extent of Freedom in all its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”

Scalia’s scorn was self-evident: “The ‘we,’ needless to say, is the nine of us.”

He then launched into a brief lecture on how unqualified the nine unelected lawyers in black Supreme Court robes are to weigh in on social policy issues, instead of sticking to strictly legal points. He pointed out that the justices look nothing like America. They’re wealthier, including a majority with assets in the millions. All but one graduated from either Harvard or Yale. Half are from one city—New York. And he noted the lack of a single Protestant despite the court’s history and the nation’s own demographics.

In other words, Supreme Court justices are probably the last people you’d want to ask for advice on about average, normal, everyday, social or community issues. That’s not their world and never has been.

“The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges,” Scalia wrote, “answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage.”

But their disconnect with the citizenry at large becomes exceedingly relevant when they substitute their view for the rule of law.

“They have discovered in the 14th Amendment a ‘fundamental right’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since,” he wrote.

“They see what lesser legal minds—minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly—could not.”

It’s true that Supreme Court justices must be meritorious as legal experts. But the decision inObergefell went unapologetically beyond Constitutional law, asserting authority to rule on abstract issues such as “dignity.”

Scalia’s issue wasn’t with the result in the case, but the method used to arrive at it. “[I]t is not of special importance to me what the law says about marriage,” he wrote. “It is of overwhelming importance, however, who it is that rules me.”

Demographics on the court shouldn’t matter as much as legal qualifications, except when justices start substituting “We the Judiciary” for “We the People” and end democratic debate among the states with subjective social rulings. In that case—and it’s a disturbing trend—Supreme Court nominees need to be more representative religiously, geographically and educationally.

Mr. Constitution

Allegorical black crepe is hanging over Independence Hall this week. The sudden and unexpected passing of U.S. Supreme Court Justice Antonin Scalia has thrown original-intent supporters everywhere into mourning.

Self-described as an “originalist,” Scalia draped himself in constitutional fidelity every time he donned his official black robe. There was no truer friend of self-government, as executed through sovereign states under a federal charter, and no bigger champion of liberty as eloquently expressed—and enumerated and reserved—in our Bill of Rights.

At the time of his death, Scalia had served on the Supreme Court bench for 30 years and, on par with his nearly eight decades of life, leaves a legacy of legal leadership in which he consistently performed at the top tier.

A teenage friend characterized his brilliance suitably. Scalia was, he said, “way above everyone else.”

He was class valedictorian both at Xavier High School in Manhattan and at Georgetown University, and graduated magna cum laude from Harvard Law School. Appointed by President Ronald Reagan in 1986, Scalia was a prolific, powerful and persuasive writer. No Supreme Court justice in history wrote more concurring opinions, and only two wrote more dissents.

He and his wife were married for 55 years, and it’s unclear how many, if any, justices exceeded Scalia’s brood of nine children.

In tribute to what President Obama called a “towering figure” in American jurisprudence, here’s a NinoDigest (named in honor of his famous Ninogram memos to other justices) of some of his memorable, intellectual and amusing remarks.

Regarding his adherence to textualism, or taking the words in the Constitution and statutes at their meaning, and the inherent silliness of making plain language subject to political modification:

“What is a moderate interpretation of the text? Halfway between what it really means and what you’d like it to mean?”

“If you think aficionados of a living Constitution want to bring you flexibility, think again. You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That’s flexibility.”

On the notion that the court inherently weakens the republic, upsets the constitutional balance of powers, and robs the people of liberty when it usurps legislative authority and engages in lawmaking:

“The States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so. The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”

“Every time the Supreme Court defines another right in the Constitution, it reduces the scope of democratic debate.”

“Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ ‘reasoned judgment.’ A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”

His personal favorite opening line in an opinion:

“This case, involving legal requirements for the content and labeling of meat products such as frankfurters, affords a rare opportunity to explore simultaneously both parts of Bismarck’s aphorism that ‘No man should see how laws or sausages are made.'”

Scalia was often critical of the court’s exceedingly poor credentials for enacting or shaping social policy, rather than sticking to ruling on fine legal points.

He highlighted the shocking disparity between the robed jurists and the population at large in his masterful dissent in the 2015 same-sex marriage case, Obergefell v. Hodges.

“Judges are selected precisely for their skill as lawyers … . Not surprisingly then, the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count).

“Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination. … And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”

Back in 1990, famed liberal law professor and legal scholar Laurence Tribe remarked upon Scalia’s first few years on the big league bench, during which he had already developed a reputation as an impassioned participant in oral arguments and an exceptional legal writer.

“There is no question Scalia is brilliant,” Tribe said. “What remains to be seen is if he is wise.”

All these years later, now that he belongs to the ages, we have our satisfying answer.

Scalia’s wisdom, wit and way with words will be missed—and not soon replaced, if ever.